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I Am a Legal Father, and I Need to Revoke Paternity of a Child Born During My Marriage

Contents

In Michigan, if you are married to a woman when her child is born or conceived, you are the legal father of that child. This is true even if you are not the child’s biological father. You have all the rights and responsibilities of a parent, while the biological father does not have any.

The only way to change your legal status as the child’s father is through a court process where the judge can determine you are not the father.

Motion/Complaint to Determine Child Born Out of Wedlock

In order to have your legal status as the child’s father revoked (removed), a motion or complaint must be filed asking a judge to determine that the child was born out of wedlock. This is the only way to revoke your paternity after June 2014. Either you, the child’s mother, or an alleged father can file the motion or complaint. In some situations, the Department of Health and Human Services (DHHS) can also file this motion or complaint. You can use our Do-It-Yourself Revoke Paternity Established by Marriage to prepare the forms you need for the court process.

Depending on who asks the court to revoke your paternity, there are different things that have to be proven in court. It is easiest for you, the legal father, to ask for your paternity to be revoked. It is the most difficult for the alleged father to ask for your paternity to be revoked.

Filing requirements

If you are the legal father and you want to ask the judge to determine that the child was born outside of marriage, you can file your motion before the child turns three years old in any of the following cases:

If the child is older than three, you can file a motion in a divorce or separate maintenance case between you and the child’s mother.

Requesting a Time Extension

If the child is older than three and you want to file your papers without getting a divorce or separate maintenance (for example, by starting a paternity case), you can ask for a time extension. To do this, file a Motion and Affidavit for Extension of Time to File Action for Revocation of Paternity. The Do-It-Yourself Revoke Paternity Established by Marriage can help you prepare this Motion and Affidavit along with the other forms you need.

To qualify for a time extension, you have to show that you failed to file before the child turned three because of one of the following reasons:

Mistake of fact

(Example: You thought you were the child’s father until after the child turned three years old.)

Newly discovered evidence that by due diligence could not have been found earlier

(Example: After the child turned three years old, you found a letter addressed to your wife that says another man is the child’s biological father.)

Fraud

(Example: Your wife falsely led you to believe you were the father until after the child was three years old. For fraud to occur, your wife must have known that you were not the father and intended for you to believe that you were.)

Misrepresentation

(Example: Your wife falsely led you to believe you were the father until after the child was three years old. Unlike with fraud, misrepresentation can occur even if the mother believed you were the father and did not intend to deceive you.)

(Someone’s misconduct—not covered by the other categories—prevented you from filing before the child turned three years old.)

If the judge grants you a time extension, you must later prove by clear and convincing evidence that revoking your paternity will not be against the best interests of the child. See the “Best Interests of the Child” below.

Revoking Paternity

Genetic Testing

The judge may order you, the mother, and the alleged biological father to have genetic testing done to be sure who the child’s father is. The judge will order you and/or the other parties to pay for the testing.

Best Interests of the Child

The judge may also consider the best interests of the child in deciding whether to revoke your paternity.

Even if you meet the filing requirements and genetic testing shows that you are not the child’s father, the judge can refuse to revoke your paternity if doing so would go against the best interests of the child. You must prove that it is in the best interests of the child for the judge to revoke your paternity. The judge may consider the following factors:

Whether you should be allowed to deny parentage because of your conduct

(Example: If you delayed asking the court to revoke your paternity for a long time without a good reason, or filed before but asked for the case to be dismissed, revoking your paternity may be against the best interests of the child.)

How long you have known you might not be the child’s father

(Example: If you filed to revoke your paternity immediately after finding out you may not be the child’s father, revoking your paternity may be in the best interests of the child.)

The facts surrounding your discovery that you might not be the child’s father

(Example: If you moved out of the home you shared with your wife and the child after finding out you are not the child’s father, and you have not stayed in contact with the child, it may be in the child’s best interests to revoke your paternity.)

What kind of relationship the child has with you

(Example: If you have a close relationship with the child, revoking your paternity may be against the best interests of the child.)

What kind of relationship the child has with the biological father

(Example: If the child has a close relationship with the biological father, revoking your paternity may be in the best interests of the child.)

The child’s age

(Example: Revoking paternity may be in the child’s best interests if the child is very young and not very attached to you.)

Whether the child would be harmed if your paternity is revoked

(Example: If the child is strongly attached to you, it may be against the child’s best interests to revoke your paternity.)

Anything else related to why your paternity should or should not be revoked

The Judge’s Decision and Child Support

If the judge grants your motion or complaint, the judge will sign an order revoking your paternity. You will no longer have any parental rights. Depending on whether an alleged biological father is also part of the case, the judge may also sign an order naming him as the new legal father.

The judge can set aside your child support obligation starting with the date you filed your Motion/Complaint to Determine Child Born out of Wedlock.

If you owe back child support (arrears) from before you filed your Motion/Complaint to Determine Child Born out of Wedlock, you will still owe this debt even if the judge revokes your paternity. The mother of the child may be able to waive (forgive) some or all of this debt, depending on whether you owe support to her or to the state. You can also file a motion asking the court for relief from the prior support order, but this website cannot help you prepare this motion. You may want to consider contacting a lawyer for help.

If the judge denies your Motion/Complaint to Determine Child Born out of Wedlock, you will continue to be the child’s legal father. You will continue to have all the rights of parenthood (custody and/or parenting time) and the obligations (child support).

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